Judge calls Detroit’s prosecution of water shut-off protesters a ‘disaster’

Off the rails

Curt Guyette is an investigative reporter for the ACLU of Michigan. He can be reached at 313-578-6834 or cguyette@aclumich.org.

In the summer of 2014, as the city of Detroit was shutting off water to thousands of homes a week, a group of activists resorted to civil disobedience in an attempt to draw attention to the crisis.

They gathered before sunrise on East Grand Boulevard, outside a facility operated by Homrich, the demolition/environmental contractor paid more than $5 million to conduct the shutoffs.

About 20 people marched, chanted, sang songs, and blocked the gate to the company's parking lot.

Detroit police were on the scene early and spent much of the day watching from the sidelines. Finally, a blue police bus was called in to take away nine protesters who essentially asked to be arrested in an attempt to put the issue of water shut-offs in front of a jury.

One protester was never charged with a crime, and another settled the case without going to trial. Now, more than 18 months later, the cases of the seven remaining protesters — each facing one misdemeanor charge of disorderly conduct — have yet to be settled, with the Detroit Law Department dragging out the proceedings with one legal maneuver after another.

In late November, the city's obstructionism hit a new low, according to attorneys representing the protesters.

In documents filed with Wayne County Circuit Court, attorneys for the protesters contend that city lawyers twice engaged in "unethical and illegal ex parte" meetings with Wayne County Circuit Court Judge Michael Hathaway.

(To ensure that due process rights are protected, both sides are supposed to be present during meetings with a judge; meetings where that doesn't happen are referred to as "ex parte.")

At least twice during the prosecution of the Homrich protesters city attorneys met with a judge without telling defense attorneys beforehand.

In court on Friday, Linda Fegins, an attorney for the city, denied any wrongdoing on the city's part.

But Judge Robert J. Colombo, chief judge of Wayne County Circuit Court, had a decidedly different opinion, saying during a court proceeding Friday that the ex parte meetings should not have occurred the way they did.

"That should never happen," he said. "Never."

Secret meetings

The first secret meeting occurred in November, just before seven of the protesters were set to go to trial in front of 36th District Court Judge Garrett.

Two of the protesters — longtime community activists Marian Kramer and the Rev. Bill Wylie-Kellermann — were supposed to have their cases heard by a jury. Another five defendants would participate in what is known as a "bench trial," with the judge rendering a verdict. All seven were to be tried at the same time, in front of the same judge.

The trial was set to begin Nov. 18.

One day prior to the start of that trial, however, attorneys for the city — without informing defense attorneys — met with Hathaway and obtained an emergency order stopping the bench trial over five protesters from going forward.

"At no time were any of the defense attorneys given any opportunity to be heard in opposition to this unethical and illegal ex parte motion for a stay of proceedings," asserted defense attorneys in court documents.

Making the case for action

Although the bench trial of five protesters had been postponed, the jury trial of Kramer and Wylie-Kellermann (who represented himself) was allowed to proceed as scheduled. A jury was selected, opening statements made, and, over the course of seven days, witnesses took the stand and testified.

Prior to closing arguments on Nov. 30, attorneys for the city asked Judge Ruth Ann Garrett to declare a mistrial, claiming that the jury had wrongly been allowed to hear "highly inflammatory and unduly prejudicial testimony."

Essentially, the defense wanted to establish why the protesters took the actions that they did.

The city argued that allowing the jury to take those motivating factors into consideration was inappropriate. Garrett disagreed, and the trial was allowed to proceed. Closing arguments were made.

An attorney for the city told jurors that the defense was, in essence, throwing everything it could "against the wall" in an attempt to "see what would stick." But none of that, she argued, was relevant. There was only one simple and straightforward fact the jury needed to consider: Did the defendants engage in an act of disorderly conduct?

For his part, Wylie-Kellermann made a point of reiterating the prosecutor's point of who wasn't on trial.

The city of Detroit wasn't on trial, he noted. The Department of Water and Sewerage wasn't on trial. The unelected emergency manager who ordered the mass shut-offs wasn't on trial. The contractor being paid millions of dollars to shut off people's water wasn't on trial.

Speaking slowly and softly, appearing slightly disheveled in an inexpensive sports coat, Wylie-Kellermann then delivered a line that summed up the essential point that propelled him and the other protesters to push the issue as far as they have:

"I'm on trial," he said, placing a hand to his chest. "Marian Kramer is on trial. And I submit that, at this moment in history in Detroit, all of us are on trial."

In other words, it wasn't just a legal issue at stake. It was also a moral issue.

After Kramer's attorney, John Royal, made his closing argument, the jury was poised to begin deliberations.

But they never got the chance.

Shortly before deliberations were set to begin, attorneys for the city informed the defense and Garrett that Hathaway, as the result of another ex parte hearing — which included the city's chief attorney, Melvin "Butch" Hollowell — had issued an order halting proceedings.

It was, defense attorneys now argue, an "unprecedented step" to halt a jury trial while in progress in a case involving a "minor city ordinance violation."

Or, as Kramer told reporters shortly after the deal went down, "The jury was seated, and was ready to go in and do their job, and it was snatched from up under them."

In a court appearance Friday, defense attorney Julie Hurwitz stated that, based on transcripts of the second ex parte hearing, attorneys for the city "blatantly misrepresented the truth" when they assured Hathaway that the defense had been given notification of the proceedings.

Jumping the rails

On Friday, after Hathaway refused a defense motion to remove himself from further rulings in the case, the action moved to Colombo's courtroom. He agreed that the ex parte hearings should never have been allowed to occur, but that Hathaway had done nothing to justify being removed from the case.

Declaring that the case "has gotten way off track," Colombo looked at where things stand and determined: "This is a disaster."

Members of the jury are still waiting to hear if they will ever be called back. The five defendants whose bench trial was postponed still have not been able to have their day in court. There are a host of issues that would have to be decided upon appeal for any of the trials to move forward.

All over a case involving seven peaceful protesters charged with the misdemeanor offense of disorderly conduct.

Colombo's recommendation was a settlement conference — which he offered to preside over — with the goal of having the city drop all charges.

The mindboggling bottom line, though, was articulated by Hurwitz in an interview:

"The fact that the city so threatened by these activists that its attorneys would go to such lengths, to the point where they would take actions that threaten their own professional reputations, is quite astounding."